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Opposition to Mining Projects by Indigenous Peoples and Special Interest Groups
Author: |
Michael Hunt
Solicitor, Hunt & Humphry, Project Lawyers
|
Issue: |
Volume 4, Number 2 (June 1997)
|
(Paper 9A presented to Today's Oil, Gas and Mining Projects, a
joint conference of the Rocky Mountain Mineral Law Foundation,
International Bar Association Section on Energy and Natural Resources Law and
the International Resources Law Institute, Denver, Colorado, 3-4 March 1997)
- Writing in May 1993 for the Journal of Energy and Natural Resources Law on the
subject of "Mineral Development and Indigenous People", my article commenced:
The land ownership claims of indigenous people and the impact of those claims
upon all other forms of land use, including mineral development, is one of the
most important and widely publicised political, social and economic issues facing
Australia at present. Very strongly held views are being expressed very
forcibly.[2]
Nearly four years on, nothing has changed.
- This paper commences with a description of the Mabo litigation (commonly referred as
Mabo (No. 1) and Mabo (No. 2)) and summarises the main issues[3] concerning native
title.[4]
- Then follows an outline of the legislative response to Mabo (No. 2), principally the
Native Title Act 1993 (CTH).[5]
- The paper then reviews recent court decisions, especially
the Wik [6] case decided 23 December 1996 which has been the source of recent controversy in Australia.
- Then, as required by the topic, the paper moves to a review of the Ok Tedi litigation. It
concludes with a discussion of the effect of international conventions, principally, the
United Nations "Convention on the Elimination of All Forms of Racial Discrimination"
and draft "Declaration on the Rights of Indigenous Peoples".
MABO (NO. 1)
- In 1982 some of the Meriam people who inhabit the Murray Islands in the Torres Strait
(between mainland Australia and the Independent State of Papua New Guinea) issued
a writ in the High Court of Australia claiming they had rights of ownership of the island
of Mer. In response the Queensland State Government, alarmed at the implications of
the issues raised, procured the passage through State Parliament of the Queensland
Coast Islands Declaratory Act 1985 (QLD) which purported to extinguish any native title
such as claimed by the plaintiffs. There was no attempt to disguise the fact that this
was a deliberate attempt by the Queensland Parliament to abolish any indigenous
ownership which might have existed.
- The plaintiffs successfully challenged this Act before the High Court in Mabo (No. 1).[7]
- The High Court ruled that the legislative attempt to extinguish the plaintiffs' native title
was nullified by operation of section 10 of the Racial Discrimination Act 1975 (CTH).
This provision was enacted to fulfil Australia's obligations under the UN "Convention on
the Elimination of All Forms of Racial Discrimination".
MABO (NO. 2)
- The Meriam people's claim for indigenous land ownership was eventually argued before
the High Court in 1991. In its judgment delivered on 3 June 1992, the court found in
favour of the Meriam people. It held that Australian common law recognises native title,
a title which reflects the entitlement of the indigenous inhabitants to their traditional
lands, in accordance with their law or custom.
- The court declared that the Meriam people are entitled to possession, occupation, use
and enjoyment of the lands of the Murray Islands. In making this declaration, the court
noted that the title of the Meriam people is subject to the power of the Queensland
Government to extinguish that title by valid exercise of its powers. However, it noted
that any exercise of those powers must not be inconsistent with the Racial
Discrimination Act 1975 (CTH).
- Thus, sovereign power is not an issue nor is there an issue of ownership of land in the
common law sense. However, in another sense, native title does amount to ownership
of the land because the Meriam people were declared to be entitled "as against the
whole world" to possession, occupation, use and enjoyment of the land subject only to
the power of Parliament to extinguish that title.
- This was a new concept for Australia, previous legal theory being based upon the land
being terra nullius (the land belonged to no-one). What the High Court did was
recognise principles which had been established in common law jurisdictions elsewhere
in the world.[8]
- In Mabo (No. 2),[9]
the High Court of Australia has at last brought Australia
into line with the jurisprudential thinking of the rest of the common law world.
- In its decision the High Court laid down a number of principles which can be
summarised as follows:
- The source of native title is common law.
- No recognition of native title by
legislation is required.
- Its source lies in a connection with the land and
this connection must accord with traditional laws and customs.
- The content of native title and the persons who are entitled to native title
must be ascertained according to traditional laws and customs.
Occupation or connection with the land by the Aboriginal inhabitants must
be demonstrated. It must also be shown that the occupancy or
connection with the land has continued since the time of assertion of
Crown sovereignty.
- Native title can be extinguished by surrender, abandonment, death or an
act of the Crown demonstrating a clear intention to extinguish native title.
The Crown can extinguish native title either by appropriating land to itself
or by granting an interest to a third party which is inconsistent with a
continuing right to enjoy native title. These principles of extinguishment
require that where the Crown has validly alienated land by granting an
interest that is inconsistent with a continuing right to enjoy native title, the
native title is extinguished to the extent of the inconsistency.
NATIVE TITLE ACT 1993 (CTH)
- This is the Federal Government's legislative response to Mabo (No. 2). It has been
discussed in detail elsewhere.[10]
- The Native Title Act ("NTA") creates a procedure under
which native title can be declared to exist, basically by order of the Federal Court. This
is the NTA's main purpose but this most important aspect of the legislation will not be
discussed in this paper because it is not relevant to the topic.
- Relevantly for this paper the Act sets out a regime for validating titles (including mineral
titles) which were in existence as at the date of commencement of the legislation (1
January 1994)[11]
and provides a procedure for the grant of new titles in accordance with
principles which recognise native title. This procedure is the aspect which is causing
serious problems for the mining industry in Australia.
Pre-1994 Titles
- All land titles under the land codes, all exploration and mining titles under the mining
legislation and all exploration and production titles under the onshore and offshore
petroleum laws which were granted before 1 January 1994 can now be regarded as
valid from a native title perspective.[12]
- They cannot be challenged even if native title is
subsequently proved to exist over the land or waters. If native title is ultimately found to
have existed over the subject land or waters, any compensation payable for the effect of
the grant of titles upon native title must be met by the State.
- In summary, all titles granted before 1 January 1994 are valid.
1994 Titles
- The situation as to mineral, petroleum and land titles granted in Australia since
1 January 1994 is a mess. The validity of many such titles is open to question. The
situation varies from State to State.
- The problem in Western Australia arose because its State Government did not accept
the validity of the NTA and chose to enact its own indigenous title regime.[13]
- On 16
March 1995, the High Court declared that legislation invalid and upheld the
constitutional validity of the NTA.[14]
- Since 16 March 1995, the Western Australian
Government has observed the NTA's procedures for the grant of titles (discussed later
in this paper).
- The consequence is that titles issued in Western Australia between 1 January 1994 and
16 March 1995 may be invalid. It is important to emphasise the word "may". There is
no court decision yet to this effect. The issue remains open to conjecture.
- It is possible that such titles are only invalid if there was a native title claim over the land
at the time of their grant. In the March 1996 Waanyi case,[15] the
majority of the High
Court indicated (in obiter dicta) that titles granted over land the subject of a native title
claim are invalid if the NTA procedures were not followed. It is unclear whether this
view will be upheld when the issue is fully argued and the court is required to make a
decision on it, and whether this rationale would extend to titles granted when no native
title claim was in existence.
- In my opinion, if anything is determined to be invalid, it will be the grant of the title. The
application for the title would remain as a valid application and thus, if there was a
finding of invalidity of the title, the consequence would be that the application would be
returned to the Minister to be determined according to law; that is, in accordance with
the NTA procedures. The WA Government has assured industry that the priority of the
application would be preserved.[16]
- Notwithstanding this advice from the Government of
Western Australia, many companies have elected to reapply for mining titles granted
between 1 January 1994 and 16 March 1995 so as to ensure the mining titles are valid.
This approach has its own problems: it is a matter of judgment in each case whether to
surrender a title which on its face is valid and has not been challenged for an application
which must run the course of the NTA's "future act" process (discussed below) which
invariably causes delay and generally leads to demands from Aboriginal groups.
- From a strategic point of view, certain Aboriginal advisers determined to improve their
bargaining position have threatened to take out an injunction to restrain further
operations on any land pending a determination of whether native title exists, alleging
that the subject titles are invalid.
- There are two principles relating to the granting of interim injunctions to restrain current
operations. The first is whether there is a serious issue to be tried. This would require
the Aboriginals to put forward some satisfactory evidence as to the existence of native
title.
- Secondly, the "balance of convenience" must favour the grant of an injunction. In
considering this issue, the court would weigh up the prejudice to the native title
claimants if a project proceeds as against the prejudice to the company if the project is
suspended. The difference can best be illustrated by contrasting a "grass roots"
exploration program with an established mining operation. It is conceivable that the
implementation of a grass roots exploration program on ground which may have native
title and which has not yet been disturbed would be injuncted. The court could say that
the prejudice to the Aboriginals from having the ground disturbed is greater than the
prejudice to the company if the ground remains undisturbed for the present. In contrast,
it is inconceivable to me that an interim injunction would issue to restrain mining
operations once a mining project has been constructed on the basis that native title
exists there. The ground would already be so disturbed that any additional disturbance
could not be said to prejudice the Aboriginals but there would be great prejudice to the
company in stopping mining.
- In States other than Western Australia, the situation is potentially even worse. The
State Governments in Queensland, New South Wales and South Australia and the
Northern Territory Government chose not to follow the NTA's procedures in granting
titles over land which is (or was) the subject of a pastoral lease. In doing this, they
relied upon statements by the then Federal Government in Parliament when debating
the then Native Title Bill. As recently confirmed by the Commonwealth
Attorney-General's Department "the NTA was enacted on the assumption, based on
comments made in [Mabo (No. 2)] that the valid grant of a pastoral lease
extinguished native title".[17]
- This reliance was misplaced because on 23 December 1996, the High Court held in
theWik case (discussed later in this paper) that native title was not necessarily
extinguished by the grant of a pastoral lease.
- This decision exposes to challenge the validity of many mining titles issued in
Queensland, South Australia, New South Wales and Northern Territory in 1994, 1995
and 1996. I have not been able to determine the number of titles involved in those
States but, given that pastoral leases cover (or formerly covered) approximately half of
the area of Australia and (by way of example) there are 3500 mining titles in Western
Australia alone which were issued during the period of potential invalidity, the issue is
serious.
- In summary, it is not possible to conclusively determine the validity of mineral,
petroleum and land titles granted in Western Australia during 1994 and up to March
1995. This may expose projects to a risk of being injuncted. Many companies have
decided to apply for new titles over the ground the subject of any such titles so as to
remove any doubt. This approach has its own problems. In relation to other States and
the Northern Territory, many titles (those issued over land which is (or was) the subject
of a pastoral lease) during the period 1 January 1994 to 23 December 1996 are
exposed to challenge in a manner similar to WA titles.
Titles Granted after March 1995 (WA) and December 1996 (Other States) and
Titles to be Granted in the Future
- Since Western Australia decided in March 1995 to fall into line with the Federal NTA
regime, it has adopted the procedures of the NTA in relation to the grant of land,
mineral and petroleum titles over vacant Crown land and pastoral leasehold. Other
States and the Northern Territory will have to follow a similar procedure from now on.
- These NTA procedures are commonly referred to as the "right to negotiate" but more
accurately described as the "notification and right to negotiate" procedures.
- Notification and Right to Negotiate Procedures. The first step is the notification
procedure. This involves the notification of the Minister's intention to grant a mineral,
petroleum or land title once the application has been through the usual State legislation
(eg. Mining Act, Petroleum Act or Land Act) procedures and is ready to be granted.
Notice is given to bodies such as the National Native Title Tribunal ("Tribunal", a body
established under the NTA), the relevant Aboriginal organisation for the area and any
existing native title claimant. In addition, the notification is advertised in the press.
- What happens then depends if there is a native title claim already in existence or if a
claim is lodged within two months. If not, the grant can be made. Otherwise, the
procedures vary according to the type of title being sought and they must be considered
separately as follows:
- Exploration Titles. An "expedited procedure" can be used in the case of a title, the
grant of which does not impact upon an Aboriginal site, does not involve substantial
ground disturbance and does not impact upon Aboriginal community life. In such cases,
the right to negotiate procedures (discussed below) do not apply. The State takes the
view that the expedited procedure applies in respect of titles which authorise exploration
such as an exploration licence or prospecting licence under the Mining Act or an
exploration permit under the Petroleum Act.
- A native title claimant can object (within two months after the advertisement) to the use
of the expedited procedure. If there is no such objection (or if the objection is
dismissed by the Tribunal), the grant can be made. If the objection is upheld, the right
to negotiate procedure must be followed.
- The Federal Court has ruled[18]
that the criterion of interference with community life is not
confined to direct physical interference. It can extend to spiritual interference.
Following this ruling, Aboriginals now commonly claim that entry on the land by an
explorationist offends their community's spiritual life, even if the community is located a
long way from the land. It might even be argued that aerial geophysical survey can
interfere with spiritual beliefs. The trend is now for Aboriginal objections to the
expedited procedure to be upheld.[19]
- Mining Leases and Petroleum Production Licences. Applications for these titles
must follow the "right to negotiate" procedures. The Minister's intention to grant the title
must be notified. If there is no existing native title claim over the relevant land, and no
claim is lodged within two months, the grant can be made.
- However, if a native title claim already exists or is lodged within two months, the State
must conduct negotiations with the native title claimant(s) over the ensuing six
months.[20]
- Then, either an agreement must be negotiated between the Minister, the
native title claimant and the mining or petroleum company or else the intention to grant
must be referred to the Tribunal. The Tribunal has the power to decide whether or not
the grant can be made. The decision of the Tribunal can be vetoed (either way) by the
Federal Minister for Aboriginal Affairs.
- Compulsory Acquisitions. Where the State intends to grant a title (freehold or
leasehold) over vacant Crown land or pastoral leasehold, it must first acquire any native
title rights over that land. The intention to acquire those rights and grant that title is
notified, including advertising in the press. The procedure which follows is the same as
for a mining lease or a petroleum production licence.
Agreements
- Aboriginals are now realising the potency of the "future act" "right to negotiate" weapon
they have been given. Some Aboriginals are indulging in blatant opportunism, seeking
to be "bought off".
- It is common for an Aboriginal group (and often more than one group) to lodge a native
title claim after a proposal to grant a mining title has been advertised. The applicant for
the mining title must then make a choice. It can follow the statutory procedure, perhaps
contesting any objection to the expedited procedure or perhaps seeking to go to the
Tribunal for determination of whether the grant can be made. This involves lengthy
delays (in the order of a year or more).
- Alternatively the applicant can negotiate an agreement with the Aboriginal claimants.
Details of agreements are not published but it is known that many companies have
already signed agreements.
- The nature of the agreements is believed to vary from arrangements under which
various contracts connected with the applicant company's operations are awarded to
Aboriginal groups, the mining contract is given to a joint venture between an established
mining contractor and an Aboriginal group, payments are made for plant and equipment
to establish a business, payments are made for acquisition of other land, cash
payments are made, a joint venture is established or a royalty regime is agreed.
- In summary, a company's present and future applications for exploration, production
and land titles must follow the Native Title Act "notification and right to negotiate"
procedures. Except in the case of exploration titles where the "expedited procedure"
may permit the grant of such titles without following the right to negotiate procedures,
this will require either negotiating an agreement with the native title claimants or making
a future act determination application to the Tribunal.
SUMMARY AND IMPLICATIONS OF THE WIK DECISION
The Wik Peoples V State Of Queensland & Ors.[21]
- This decision, delivered on 23
December 1996, is the subject of considerable controversy in Australia and has rarely
been out of the news since. It has caused vitriolic abuse of the High Court, principally
led by the Premier of Queensland.[22]
The Wik Decision in the Context of Mabo (No. 2)
- In Mabo (No. 2), the High Court identified several ways of extinguishing native title,
including by way of a Crown grant which would vest in the grantee a right that was
inconsistent with native title. Thus, said the Chief Justice, the grant of rights of
exclusive possession (for example freehold or leasehold titles) would generally
extinguish native title. The importance of the Wik decision lies in its determination of
whether a pastoral lease extinguishes native title.
The Importance of Pastoral Leases
- Pastoral leases cover over 40% of Australia; including approximately 55% of
Queensland, 51% of the Northern Territory, 44% of South Australia, 38% of New South
Wales and 36% of Western Australia (of which a further 35% comprises vacant Crown
Land). Given the mass of land open to native title claims, pastoralists and miners alike
were anxious as to the outcome of the Wik case.
- The relevance of resolving the pastoral lease issue in the context of resource
development lies in the "right to negotiate" procedures of the NTA, mentioned above.
- Relevantly, where native title rights may exist in respect of land over which a mineral,
petroleum or land title may be granted, the NTA requires either an agreement with
native title claimants or an order of the Tribunal.
- Given the vast areas of land which were or now are covered by pastoral leases, if the
court ruled that the grant of a pastoral lease operated at law to extinguish native title,
this would greatly reduce the number of native title claims and claimants. Before the
Wik decision most people thought that native title had been extinguished by pastoral
leases. This is apparently the basis on which the negotiations were conducted which
led to the enactment of the NTA.[23]
The Wik Decision
- Facts. The case concerned two pastoral leases in Queensland granted to
non-Aboriginal parties under the Land Act 1910 (Qld) and the Land Act 1962 (Qld).
Mitchelton pastoral lease was granted first in 1915 (forfeited for non-payment of rent)
and subsequently granted again in 1919. It was surrendered in 1922 and has since
been reserved for use by Aborigines or held on their behalf. The Holroyd pastoral lease
was first granted in 1945 under the Land Act 1910 (Qld). It was surrendered in 1973.
In 1974 it was again granted under the Land Act 1962 (Qld) for 30 years.
- The High Court Decision in Brief. The High Court held by a majority of 4:3 that the
pastoral leases did not confer exclusive possession and so did not necessarily
extinguish native title. The majority decided that pastoral leases were creatures of
statute, not leases at common law, and they did not give the lessee a right to exclusive
possession but were limited to conferring a right to enter the land for the limited purpose
for which they had been granted (grazing).
- The High Court recognised that where native title rights are inconsistent with the
particular rights conferred by the pastoral lease then, to that extent, the native title rights
would be extinguished.
- The effect of the decision is that the rights and obligations of each grantee (of a pastoral
lease) depend upon the terms of the grant of the pastoral lease and upon the statute
which authorised it.
- So, as far as the extinguishment of native title rights is concerned, the answer given by
the majority is that there was no necessary extinguishment of those rights by reason of
the grant of pastoral leases under the legislation in question. Whether there was
extinguishment can only be determined by reference to such rights and interests as may
be asserted and established in the particular circumstances.
- If inconsistency is held to exist between the rights and interests conferred by native title
and the rights conferred under the State grants, those rights and interests must yield, to
that extent, to the rights of the grantees. Once the conclusion is reached that there is no
necessary extinguishment by reason of the grants, the possibility of the existence of
concurrent rights precludes any further question arising as to the suspension of any
native title rights during the currency of the grants.
- The majority decision focussed on the notion that whether an instrument of grant
creates a lease or a licence is a question of substance and not one of language.
Hence, the word "lease" and expressions such as "demise for a term of years" are not
of themselves determinative of the creation of a lease. Rather, the proper question is
whether exclusive possession was conferred.
- Attention was given to the fact that pastoral leases were creatures of statute. It was
stated by Gaudron J that "whatever may be the position in other areas of law, there is
no very secure basis for thinking that pastoral leases owe anything to common law
concepts". Thus, words such as "lease" in a statute do not necessarily have the same
meaning at common law.
- Emphasis was placed on historical factors (in particular, those relating to Queensland).
Reference was made to the huge size of the pastoral leases in question as a factor
showing that native title was not extinguished. It was noted the land had "apparently
unpromising conditions for depasturing cattle" and that nothing had apparently
happened to the land the subject of the first lease "except signing documents in
Brisbane".
- The minority (which included the Chief Justice) concluded that the pastoral leases in
question did in fact extinguish native title. They said that on its true construction a
pastoral lease under the Land Acts conferred on the lessee a right to exclusive
possession:
In the absence of any contrary indication, the use in a statute of a term that has
acquired a technical legal meaning was taken prima facie to bear that meaning.
By adopting the terminology of leasehold interests the Parliament must be taken
to have intended that the interests of a lesseeare those of a lessee at
common law, modified by the relevant provisions of the Act.
- The minority did not see any significance in the suggestion that the Crown's right to
enter at any time for any purpose and that the phrase "for pastoral purposes only"
connotes something other than exclusive possession:
The reservation, far from implying that the lease did not confer a right to
exclusive possession, implies that, without the reservation, the lessee would
have been entitled to refuse entry to any person.
Immediate Implications Of Wik
- Although the Wik decision has immediate implications for pastoralists, they are not
relevant to this paper. The relevance for the mining and petroleum industries is that the
area of land over which native title is claimable has been expanded enormously (as
mentioned before 40% of Australia is the subject of pastoral leases). This means that
the "right to negotiate" procedures of the NTA will need to be followed for all proposed
grants of mineral, petroleum and land titles on land which until now has been thought to
be exempt because it is or has previously been the subject of a pastoral lease.
- Hitherto more than half of Queensland and the Northern Territory and more than a third
of Western Australia and New South Wales was thought to be exempt from claim but
has now become subject to NTA procedures. As mentioned earlier, Western Australia
has treated pastoral leasehold as subject to NTA procedures since 16 March 1995.
Experience there has demonstrated a dramatic slowdown in the process of grant of
titles. Delays to projects are common and the resource industry is in a serious state of
uncertainty over title.
- The second major implication is that titles granted after 1 January 1994 may be invalid
because until 16 March 1995 (WA) and 23 December 1996 (other States) the NTA
procedures were not followed. Legislation is the only way to rectify this but achieving
acceptance of such legislation will not be easy.
- Although the Wik decision concerned Queensland pastoral leases, it is safe to assume
that the decision extends to all pastoral leases in Australia.
Broader Implications Of Wik
- Although from a legal viewpoint the Wik decision is not really revolutionary, nor does it
necessarily alter the effects of Mabo (No. 2) or the substantive rights of Aboriginal
people under the common law as declared by Mabo (No. 2), in the political context it
represents all the elements of an enormously influential High Court decision. The
controversy it has caused is having serious ramifications not just for principles of native
title or property law but also for the very future of the High Court itself.[24]
- Sadly, the decision has initiated a movement away from an acceptance in the general
community of indigenous rights. Mabo (No. 2) presented a realistic and genuine
opportunity for reconciliation. The immediate response to Wik appears to have
unsettled the Australian community to a considerable degree given the reality that
native title claims may now be made over a further 40% of the Australian continent. A
recent Bulletin magazine poll showed that 56% of those polled disapproved of the Wik
decision and 49% disapproved of the Mabo (No. 2) decision compared with only 32%
four years ago.[25]
- Unfortunately, the Wik decision has in many respects highlighted an
innate cultural misunderstanding between the Aboriginal people and pastoral and mining
groups. In an interview on the ABC's 4 Corners program, one pastoralist concluded that
"it will go to blood". From a resource developer's point of view, if emotions remain
anywhere near such levels, negotiations will become very difficult.
- The Wik decision has also highlighted the influence that the international community will
play in the aftermath of the High Court's decision. Calls from groups such as the
National Farmer's Federation to extinguish native title in pastoral lease areas cannot be
seen as realistic options given the UN Conventions (discussed later) which underpin the
Racial Discrimination Act.
- The only realistic path to be taken by Aborigines, pastoralists and mining companies is
negotiation over substantive issues. This will be a long term process. In this regard,
some assistance may be afforded by learning from the Canadian experience despite the
different legal frameworks principally, of course, the Canadian constitutional provisions
entrenching a recognition of indigenous land rights.
HERITAGE/ABORIGINAL SITE ISSUES
- Aboriginal groups are starting to flex their muscles relying upon the provisions of the
Aboriginal Heritage Act (WA) and threatening the intervention of the Commonwealth
Minister under the Aboriginal and Torres Strait Islander Heritage Protection Act (CTH).
It is an offence under the Aboriginal Heritage Act to knowingly enter on or damage a
site. To remove the statutory defence that the miner had no means of knowing the land
was a site, Aboriginal legal advisers have taken to writing letters to mining title holders
alleging that the whole of the land the subject of their mining titles contains sites.
- They then ask for a site survey agreement to be signed. This will generally provide for
a work program site clearance to be undertaken. This involves hiring the elders, their
anthropologists and their advisers to review a proposed program of work prepared by
the company. They then approve it or seek modification. Recent developments have
included demands for payments both in cash and based on a percentage of exploration
expenditure. This site clearance procedure is one that has developed in practice. It
has no statutory or regulatory foundation.
- Cynics view this exercise as one of cash generation for the Aboriginal interests.
Examples are known where projects have been threatened with action under the
Aboriginal Heritage Act (WA) or under the Aboriginal and Torres Strait Islander Heritage
Protection Act (CTH) unless certain demands are agreed. An example from 1995
involves a claim upon a proposed medium scale mining operation where the would-be
miner was told that there was a site in the middle of the proposed pit but that no
problems would be raised about the site if $50,000 was paid (which was paid).
Anecdotal evidence is that at least one alleged site in the Goldfields area in Western
Australia "disappeared" in exchange for a metal detector.
- However, leaving aside these examples of opportunism, generally speaking, Aboriginal
interests are becoming much more sensitive to site clearance issues and becoming
more interested in ensuring their heritage is preserved. In many areas Aboriginals are
no longer prepared to enter onto a piece of land and clear the land for any exploration
or mining activity. They are now more inclined to ask for a program of the work which is
proposed and the specific locations proposed for that work and then to agree to "clear"
that program. This pattern is the norm for the Kimberley area in the north of Western
Australia. However, in the Goldfields the norm is still for site clearance rather than work
program clearance.
MANAGEMENT OF ABORIGINAL ISSUES
- Despite the hopes of some short-sighted participants in the mining industry, Aboriginal
issues in general and native title and heritage issues in particular will not go away.
- The more progressive of the mining companies are entering into serious negotiations
with local Aboriginals. It is not an easy process and it is made more difficult by the
"power plays" amongst Aboriginal land councils, advisers and native title claimants
themselves. It is understandable that in these relatively early days of recognition of
Aboriginal land ownership in Australia, these groups are jockeying for position. But it
doesn't make life easy for the developer of a project.
- In Western Australia, there is a company which wishes to develop a major nickel
project. On the subject land, there are 22 separate native title claims. Of these, a
couple may be legitimate, a couple may be as a result of "power plays" between groups,
but the bulk of them are driven purely by economic opportunism.
- A notorious example is the Century Zinc project. This A$1,100m project seems to be
hopelessly bogged down for the foreseeable future. In fact those are the words of
RTZ-CRA's Managing Director, stating the negotiations are:
"bogged down in unproductive gamesmanship, tactical delaying and unnecessary
obstacles to agreement".[26]
- The latest round of negotiations took place in the week up to 14 February 1997
prompting the lead paragraph in the press analysis:
The St Valentine's Day Massacre in Mount Isa on Thursday and Friday last
week, giving CRA its third failure in getting local Aboriginals to agree to
developing the Century zinc deposit, is a huge setback for both the mining
industry and the native title industry.[27]
- This project is the subject of native title claims by 12 groups. I can't do better than
quote the press report:
CRA and Pasminco - vendor and buyer of Century Zinc are back to square one.
Having broken ranks and used the Native Title Act processes instead of special
legislation and then having made a generous offer to the 12 different claimants,
CRA does not have a sale and Pasminco does not have a mine.
- The mining industry knows that Century will be the new benchmark, setting not
only the level and type of compensation for approval of projects on land covered
by native title claims (which is just about all of them) but also the way the offers
are made and negotiated and the money distributed. In those terms Century has
set the high jump bar at two metres and dug a pit in front of it.
- For the National Native Title Tribunal and the Aboriginal and Torres Strait
Islanders Commission, Century is a disaster. The whole system of native title is,
to a large extent, built on the presumption that regional Aboriginal groups are
prepared and able to negotiate reasonable outcomes with landowners and
leaseholders.
- Three times now CRA has got close to a deal on Century, and each time it has
hit a brick wall of native title claimants who simply "will not negotiate".[28]
- The system is flawed in that it is too easy to lodge a native title claim (there is no real
acceptance test) and the fact of simply lodging a claim is sufficient to give standing in
the "right to negotiate" process. At Century, CRA needed signatures of all twelve
claimants which means that each of them has a veto. I understand that six claimants
agreed but six would not accept CRA's offer. Those in favour represented about 700
people; those against represented about 60 and many of them lived a long way from the
mine site. The offer totalled $60 million over the life of the mine and was to be paid in a
number of ways: the transfer of four pastoral properties to the local communities, an
employment and training package, an environmental monitoring program, a business
opportunities program using a trust fund for venture capital to be provided to the locals,
a community development trust, an Aboriginal heritage preservation program and
retrospective compensation for the bulk sample that has already been mined from
Century.
THE OK TEDI LITIGATION
- As required by the topic for this paper, I now move from a consideration of native title
and Aboriginal heritage issues in Australia to consider the litigation over environmental
damage caused by the Ok Tedi mine in Papua New Guinea.
Background
- Located in the Western Province of Papua New Guinea, Ok Tedi is a major copper and
gold mine. It is owned by the Australian company BHP (60%), the government of
Papua New Guinea (20%) and German Inmet Mining Corporation (20%). The Ok Tedi
litigation began with allegations by landowners along the Ok Tedi and Fly Rivers that
tailings from the mine were causing serious environmental and health problems.
- The true extent of the environmental damage is contentious. Some claim that the
damage extends to the Torres Strait and as far as the Great Barrier Reef. Solicitors for
the plaintiffs claimed that every day, the mine discharges 100,000 tonnes of tailings into
the river scheme containing "large quantities of copper, one of the most poisonous
metals known when released into the aquatic eco system".[29]
- The Australian
Conservation Foundation said in 1992, that the Ok Tedi River up to 70km from the mine
was "almost biologically dead". Alex Maun, a plaintiff in the matter stated rather bluntly,
"...we used to drink, wash and fish in the river...but when the mining began in 1984, the
river became polluted".
- Ok Tedi Mining Ltd (subsidiary of BHP and operator of the mine: "OTML") has pointed
out that the mine environment is very difficult. Like much of PNG, the terrain around the
mine is very unstable. These conditions, combined with frequent seismic activity and 8
to 10 metres of annual rainfall, increase the likelihood of natural landslips. OTML claims
that these natural forces add about 90 million tonnes of sediment a year carried by the
Fly River system. OTML says:
This environment has limited our options for the management and disposal of
the waste rock and mill tailings from the mine. The tailings are ground-up rock,
with a similar composition to the sediment released by regular natural landslips.
Copper is the only element in the tailings elevated above background levels.[30]
- OTML points to 120 independent studies on waste retention schemes and, given the
specific physical characteristics of the region, claims that the stability and long term
safety of a tailings dam cannot be assured. OTML says:
The Government at present permits the discharge of tailings into the Ok Tedi.
The effects are controlled by a regulatory framework which sets maximum limits
on sediment levels in the Ok Tedi and the Fly River. We have complied with all
regulations.[31]
- OTML claims that monitoring studies indicate the environmental impacts on the Ok Tedi
and Fly River will be temporary and that the system will progressively return to its
pre-mine state when mining is completed.[32]
- It was a condition when the mine was first approved that a tailings dam be built in order
to prevent poisonous tailings from entering the river scheme. The collapse of the dam
before the mine opened meant that there has never been a dam. OTML received
permission from the PNG government to continue without a dam. Political and
economic factors assisted in this decision. Civil unrest in Bougainville caused by the
closure of the Panguna mine caused a 40% reduction in PNG's export income. The
threatened closure of the Ok Tedi mine because of the $1.5 billion cost to build a dam
meant that if the Government ordered the building of the tailings dam there would have
been extreme damage to the PNG economy.
Legal Proceedings
- The landowners resolved to bring legal proceedings against the mine owners and
operator for loss and damage suffered as a result of the tailings entering the river
system.
- Test cases were initiated by four writs against BHP lodged in Melbourne, Victoria, in the
names of Rex Dagi, John Shackles, Baat Ambetu and Alex Maun (representing three
clans numbering 73 people) and Daru Fish Supplies Pty Ltd (a commercial fishing
company). Thereafter writs for the balance of 500 clans' claims were lodged in the
National Court of Papua New Guinea.
- At all times, BHP has contended that it acted legally with authorisation from the PNG
government and by virtue of the various leases and licences issued to the defendants.
- Several proceedings took place before the Supreme Court of Victoria including
applications:
(a) against the plaintiffs for security of costs
(b) by the plaintiffs to have default judgment entered against BHP after ignoring
warnings that the time for filing a defence was about to expire: judgment was
entered but later set aside by the court
(c) to have the plaintiffs' solicitors punished for contempt of court after speaking out
about the case: struck out
(d) to have the plaintiffs' solicitors enjoined from speaking out about the issues in the
case: rejected
(e) by the defendants to strike out the statement of claim: failed
(f) for leave to amend the defence to plead want of jurisdiction: failed
(g) to question the validity of the retainer agreement between the plaintiffs and their
solicitors: failed
(h) to oust the jurisdiction of the Supreme Court of Victoria to hear the cases on the
grounds that the Court could not determine issues relating to land situated in
another jurisdiction (the "Mozambique principle").[33]
- The Court recognised that
" at common law, the Court will refuse to entertain a claim where it essentially
concerns rights, whether possessory or proprietary, to or over foreign land, for
these rights arise under the law of the place where the land is situate and can be
extinguished only in the courts of that place".
- Therefore Byrne J ruled that the claim for damages and other relief founded on
trespass by the defendants could not be entertained in Victoria. However, he
ruled that the claim for negligence for damage other than to land could proceed.
Byrne J concluded that the basis of the plaintiffs' cause of action in negligence
was the plaintiffs' loss of amenity or enjoyment of the land. He ruled that this
was not based on a possessory or proprietary right to this land[34]
(i) by the plaintiffs for leave to be released from the usual implied undertaking as to
non-disclosure of materials obtained on discovery to enable the plaintiffs to give
a copy of an expert report to the PNG government: opposed by BHP but
successful.
The 8th Supplemental Agreement
- In response to the plaintiffs' suit, a Bill to ratify the 8th Supplemental Agreement to the
original agreement relating to the development of the mine was proposed by the Papua
New Guinean government for consideration by the PNG Parliament. The effect of this
8th Supplemental Agreement was to prevent the plaintiffs and landowners along the
river from suing the Ok Tedi mine owners or claiming any further compensation. The
Agreement proposed compensation for the environmental damage of 110 million kina
(approximately US$80 million). It provided that any person who breached the
Agreement or failed to comply with the Agreement would be fined 100,000 kina plus
10,000 kina a day for a continuing breach. The Agreement also provided that no
person could challenge the Agreement, once the Bill was enacted, by claiming that its
provisions offended against the Papua New Guinean Constitution. Moreover, it
prohibited persons assisting people to bring legal proceedings or giving evidence in
legal proceedings.
- Further, if OTML was ordered to build a tailings dam, it would be entitled to reduce the
compensation payable dollar for dollar. Given that the cost of a tailings dam would far
exceed the total amount of compensation payable over the life of the mine, this would
effectively end all payments of compensation. In the words of the plaintiffs' lawyer:
When we saw the agreement, we were staggered that a foreign government
could draft an agreement that so abrogated the fundamental democratic rights of
its citizens and stood in flagrant disregard of international treaties, such as the
United Nations Universal Declaration on Human Rights, let alone its own
Constitution. But then we had another shock. We noticed that word processing
codes at the bottom of the Agreement and the Bill were the same as those
emanating from the offices of BHP's Australian lawyers. Thus, human rights and
freedoms Australians hold dear were being swept away on the instructions of an
Australian company to its Australian lawyers.[35]
- On 4th September 1995, a summons was filed by the plaintiffs against BHP alleging
contempt of court by reason of its conduct in relation to the drafting of the Agreement.
The plaintiffs alleged that BHP had assisted in the drafting of the Agreement that
abrogated the rights of the landowners and this amounted to a contempt of the Court.
- Cummins J held[36]
that BHP and OTML had been guilty of contempt of court by
interfering with the due administration of justice. As Cummins J pointed out, one of the
more telling pieces of evidence in relation to this finding was the identical word
processing codes at the bottom of the Agreement and the Bill to the code used by
BHP's lawyers.
- BHP successfully appealed[37]
the decision on the basis that the plaintiffs did not have
standing to bring proceedings because s46 of the Public Prosecutions Act 1994
required that only the Victorian Attorney General could bring actions for contempt of
court. Although the appeal succeeded on this technicality, the media portrayed BHP as
"guilty" for attempting to avoid the litigation by the Papua New Guinean landowners.
The Resolution Of The Ok Tedi Litigation
- On 11 June 1996, BHP and the plaintiffs announced a settlement of the litigation which
included monetary compensation for the damage to the environment and lifestyle of the
Ok Tedi and Fly river communities.
- BHP announced the outcome as follows:
(1) The legal proceedings in Victoria and Papua New Guinea would be discontinued.
(2) BHP would cover the plaintiffs' legal costs of the litigation - estimated at $7.6
million.
(3) BHP was committed to supporting a full inquiry announced by the Papua New
Guinean Government in search of a better alternative to tailings disposal (such
as by a pipeline to stable land below the mountains).
(4) OTML agreed to examine the feasibility of dredging the river beds to deepen the
river, removing the tailings sediments.
(5) OTML would pay compensation to the value of $110 million (The cost of
alternative tailings disposal, estimated at $300 million, is in addition to this
compensation).
(6) Training, development, education and business opportunities for local villagers.
- Slater and Gordon (the plaintiffs' solicitors) announced the settlement in a media
statement as follows:
The landowners regard the settlement as a victory for all concerned. It should
send a message to the international investment community that any dispute that
arises in a major resources project in PNG can be resolved peacefully and with
goodwill. Landowners believe that the result has vindicated their decision to
pursue their remedy through the Courts in Australia and PNG.
Broader Implications Of The Ok Tedi Litigation
- The Ok Tedi litigation has focussed international public attention on the relationship
between the environment, indigenous people and resource development.
- I offer the following observations arising from the Ok Tedi litigation;
- (1) The case highlighted that the problems of major resource developments in
relatively poor nations are not easy to solve. The Ok Tedi mine is a major
contributor to the economy of Papua New Guinea with the mine producing close
to 17% of the nation's export income. As BHP has consistently pointed out, the
mine has brought into the nation large sources of capital for education,
infrastructure and employment opportunities. However, there can be no doubt as
to the serious degradation of the environment that has occurred as a result of the
Ok Tedi mine. It presents the classic "Catch 22": economic development at the
cost of environmental damage.[38]
- (2) This brings the issue to a question of which standards do we apply to companies
which in exploiting a resource overseas act in a way that would be unacceptable
in their own countries. Organisations such as Community Aid Abroad and the
Australian Conservation Foundation have called on the Australian Government to
enact legislation imposing a code of conduct for Australian companies which
operate overseas. This is strongly opposed by the resources industry which
claims that the best solution is self regulation.
- It is a difficult decision. One of the reasons why major companies from Europe,
North America and Australia engage in operations overseas is that the regulatory
environment at home has become stricter (and in the case of Europe,
prohibitive). As Professor Wälde has remarked: "In developed countries (apart
from major mineral producers such as Canada, the US and Australia), mining is
becoming an endangered species".[39]
- I believe the bracketed words can now be
deleted.
- The type of legislation that has been suggested would mean a reduction in the
profits of mining companies as they adhere to Australian standards in their
overseas operations. In some circumstances, those standards might be
inappropriate. In others, the host government may not want those standards
imposed. A possible outcome is that the project will not proceed: a loss for the
host country. Perceptions differ so markedly: BHP prides itself on obedience to
"the world's best practice" . However, the Australian Conservation Foundation
comments, how can the world's best practice be "consistent with the annual
discharge of 60 million tonnes of residue into the Ok Tedi and Fly Rivers, which
would not be allowed in a developed country".[40]
- There is a demonstrated need to find international standards on which to
measure and guide the practices of companies involved in major resource
development. Introduction of environmental standards through an international
organisation seems to be a more acceptable course of action than either
legislation in the companies' domicile or United Nations' conventions. The UN is
not perceived as having the appropriate balance between environment and
development.
- The benefits of finding international standards on which to judge companies for
their treatment of the environment and the indigenous seem obvious. However,
there are problems in internationalising this issue. For example, it impinges on
the innate right of a sovereign country such as Papua New Guinea to enact its
own laws, as it did in response to the legal actions against the Ok Tedi mine.
However the continuing trend towards the internationalisation of issues such as
the environment must be recognised. The environment is increasingly seen by
the international community as "ours". The protection of indigenous rights is
increasingly seen as "our responsibility" by the world community.
- (3) The problems caused by the Ok Tedi mine and the course of the Ok Tedi
litigation highlight the difficulty that local indigenous people have in protecting
their basic rights to land and indeed their basic requirements for survival such as
fishing and drinking from their traditional environments. Invariably the
government which wishes to encourage the resource development is located far
from the area which will be affected by the development. So the host
government is generally less concerned with protection of local peoples' rights
than is the developer. In most cases, the local people do not have any
proprietary rights to the land and they lack the resources to contest the
degradation of their environment.
- This highlights again the desirability of an international solution for the protection
of indigenous people. It is necessitated by the unwillingness of poor third world
countries to forsake international investment opportunities in favour of indigenous
rights and environmental protection.
- (4) The increasing focus on international standards has turned attention to the
United Nations for solutions. Recently, the development of the Declaration on
the rights of Indigenous Peoples has created hope for some scrutiny or guidance
from the major international body. The instrument refers to various rights of
indigenous people. For example, Article 26 recognises the right of the
indigenous to own, develop and control the use of traditional land and Article 27
refers to the right to restitution of the lands and resources which they have
traditionally owned or used, and which have been confiscated or damaged
without their consent.
- This is complemented by the environmental policies of the United Nations such
as The United Nations Conference on Environment and Development (UNCED)
and the subsequent Rio Declaration on Environment and Development. In the
latter, Principle 22 states that:
Indigenous people and their communities, and other communities have a
vital role in environmental management and development because of their
knowledge and traditional practices. States should recognise and duly
support their identity, culture and interests and enable their effective
participation in the achievement of sustainable development.
- Chapter 26 of Agenda 21 highlights the importance of cooperation with
indigenous peoples.
- (5) As Professor Wälde has noted:
The balance between economic development and environmental
protection may need to be defined differently.[41]
- He has pointed to the continuing tension between the tendency in Western
countries for increasingly strict minimum environmental standards and the
resistance in developing countries to the imposition of such standards from
abroad. These countries will want to develop their own development versus
environment equation and adapt externally suggested standards to local
conditions, resources and politics. He sees no easy resolution to this inherent
tension except a double standard: the Western world's strict standards and less
restrictive minimum standards in developing countries which will evolve through
self-realisation in the Third World of the ultimate benefit of sound environmental
policies.
- (6) Professor Wälde has also noted the related socio-cultural impact. Related to
environmental concerns are conflicts between the technical imperatives of mining
and petroleum operations and the existence and interests of local communities
affected by such operations.[42]
- The Ok Tedi situation is not far removed from the
serious opposition from local communities which have closed down operations
such as the Phuket tantalum plant in Thailand (burnt down by local citizens) or
the Bougainville copper mine in Papua New Guinea. As Professor Wälde says:
Mineral laws, contracts and licenses have always taken into account local
community interest by providing appropriate compensation to landowners
and others affected by the operation. Some agreements provide for a
local business development program and for training, if necessary also
resettlement. However, it is still rare to find obligations to prepare a
socio-cultural impact statement and set up a local community
management program and to give a formal role to local community
representatives in the decision and approval process incumbent on central
government authorities as is by now standard practice in developed
countries.
The centralist, and undemocratic, character of the often feeble and
embattled governments in the underdeveloped world militates against the
notion of community and citizen participation in such administrative
procedures. However, we can expect that with the transition from pure
mineral law to land-use legislation and the emergence and acceptance of
community and citizen participation the socio-cultural impact will take a
greater role in the mineral licensing and negotiating process. At the
moment, these effects are to some extent taken into account by intelligent
companies and government agencies and sometimes imposed on such
actors, if recalcitrant, by the national and international development
finance institutions themselves under the pressure of the developed
world's environmental pressure groups.[43]
THE UNITED NATIONS AND HUMAN RIGHTS
- The United Nations' human rights agenda has played a crucial role in the development
and the protection of indigenous rights in Australia. Indeed, the Racial Discrimination
Act 1975 (CTH) which underpins the decision in Mabo (No. 1) and Mabo (No. 2) is
based on conventions of the United Nations.
Human Rights - Background
- In 1946 the Commission on Human Rights was established to work on an International
Bill of Rights. This was to consist of a Declaration of Human Rights, a covenant on
human rights to transform the principles in the above Declaration into legal declarations
and international machinery to ensure that the obligations were observed.
- In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights.
In 1966, the International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights and the Convention on the
Elimination of All Forms of Racial Discrimination were adopted. Australia ratified the
latter on 31 October 1975 by which time 80 nations around the world had done so.
UN Conventions and Australian Law
- The ratification of treaties and use of customary international law allows the Australian
Legislature to legislate with respect to matters concerning those sources. This is by
virtue of section 51(xxix) of the Australian Constitution which allows the Commonwealth
Parliament to legislate with respect to "external affairs". In Koowarta v Bjelke Peterson
[44]
the presence of treaty obligations was seen as a legitimate source of legislative
power for the Commonwealth. In his judgment, Stephen J stated:
Even were Australia not a party to the Convention, this would not necessarily
exclude the topic as a part of external affairs. It was contended by the
Commonwealth that, quite apart from the Convention, Australia has an
international obligation to suppress all forms of Racial Discrimination because
respect for human dignity and fundamental rights, and thus the norm of
non-discrimination on the grounds of race is now part of customary international
law as both created and evidenced by State practice and expounded by jurists
and eminent publicists In the present cases it is not necessary to rely on this
aspect of the external affairs power since there exists a quite precise treaty
obligation, on a subject of major importance in international relationships which
calls for domestic implementation within Australia. This itself, without more,
suffices to bring the Racial Discrimination Act 1975 (CTH) within the terms of
section 51 (xxix).[45]
- Thus, Koowarta established that the Racial Discrimination Act, by virtue of section 51
(xxix) of the Australian Constitution and the United Nations Convention, was a valid Act
of the Australian Parliament.
- So it can fairly be said that the UN Convention on the Elimination of All Forms of Racial
Discrimination to enact the Racial Discrimination Act 1975 (CTH) has directly resulted in
Aboriginal land ownership being recognised in Australia, the reason being that section
10 of the Act (relying on the Convention) underpins the judgment in Mabo (No. 1) which
in turn permitted the litigation in Mabo (No. 2) to proceed.
The United Nations Declaration on the Rights of Indigenous Peoples
- Work on this Declaration began in 1982. However is yet to be approved by the UN
General Assembly.
- In 1994 a draft was approved by the Working Group on Indigenous Peoples and
referred to the Sub Commission on the Prevention of Discrimination and Protection of
Minorities. In 1995, that group approved the Draft and referred it to the UN Commission
on Human Rights. This body has created a working (drafting) group of member states
and observers, including non government organisations to elaborate a declaration on
the rights of indigenous peoples having regard to the draft elaborated by the Working
Group on Indigenous Populations. This met for the first time on 20 November 1995.
The final approval of the Draft will take several years to complete.
- The Australian Government has begun consultation with the States and Aboriginal
groups in respect of the Draft. Prior to the 1995 session of the UN Commission on
Human Rights, Australia proposed increased involvement mechanisms for Indigenous
Peoples. This was particularly caused by the increasing criticism of the Draft for its lack
of consultation with Indigenous groups. Resolution 1995/32 was introduced by Australia
and adopted by consensus giving Indigenous Peoples the right to participate.
- The content of the Declaration is still under close scrutiny by all parties. It is envisaged
that the final draft will contain a minimum standard for the survival and well being of
indigenous peoples.
- The Draft sets out the following rights relevant to the subject matter of this paper:
- the right to self determination (Article 3) including the right to maintain and
strengthen their distinct political, economic and social life as well as their legal
systems (Article 4);
- prevention of and redress for any action which has the aim or effect of
dispossessing them of their lands, territories or resources (Article 7);
- the right to maintain and protect their past, present and future manifestations of
their cultures such as archaeological and historical sites and ceremonies
(Article 12);
- States are required to take effective measures in conjunction with the indigenous
peoples concerned to ensure that sacred places, including burial grounds are
preserved, respected and protected (Article 13);
- the right to maintain and strengthen their relationship with land and other
resources which they have traditionally owned or otherwise occupied or used
(Article 25);
- the right to own, develop, control and use the lands and other resources,
including the full recognition of their laws for the development and management
of resources (Article 26);
- the right to restitution of the lands and resources traditionally owned or used and
where that is not possible, they have the right to just and fair compensation
(Article 27);
- the right to determine priorities for the development of their lands and other
resources, including the right to require that States obtain their free and informed
consent prior to approval of any project affecting those lands or resources. Just
and fair compensation must be provided for such activities and measures taken
to mitigate their impact (Article 30).
- The concept of self determination will be a difficult issue to resolve. Many States are
opposed to self determination for Indigenous groups. The implication of self
determination for some States is recognition of an obligation to hand over vast areas of
land to indigenous groups. Moreover, some States see the Declaration as a means of
justifying independence movements within the borders of nations.
- Some of the issues in dispute do not seem so important. Brazil, for example, has raised
the issue of dropping the "s" on "Peoples".
Australia and the International Community
- Australia has participated in the growing guidance offered by the international
community, particularly the UN, in matters concerning the environment and indigenous
groups. Notably, one of the most influential decisions of the High Court (Mabo) was
made on the basis of Conventions of the UN.
- The recent Wik decision has re-affirmed Australia's reliance on international approval.
This is most clearly seen in light of recent comments by various groups demanding the
alteration or repeal of the Native Title Act. Given that the Act is supported by the Racial
Discrimination Act, any such changes would conflict with that Act. As a consequence,
there have been discussions on "watering down" the Racial Discrimination Act.
However, this has been widely recognised as internationally irresponsible, given
increasing pressure to recognise the rights of indigenous groups. It would therefore
seem like an unrealistic option for the Australian Government to take that line in the
face of the Wik decision.
- Perhaps more realistically, the Australian public being sports mad, would be very
concerned with the threat by the former chairperson of the Aboriginal and Torres Strait
Island Commission that Aboriginals would cause an international boycott of the Sydney
Olympic Games in the year 2000 if the Native Title Act is amended so as to affect
Aboriginals' rights. Such a prospect would be regarded as far more serious by most
Australians than the risk of breaching a UN Convention.
CONCLUSION
- I want to conclude on a positive note. Mention of the Olympics reminds me of the great
joy felt by all Australians at the success of the Aboriginal athlete Cathy Freeman at the
Atlanta Olympics. Apart from the sort of lunatic fringe present in every country,
Australia is not a racist nation - indeed it is one of the world's best examples of
multi-culturalism. I admit that there is a great deal of concern in Australia concerning
native title but I believe this emanates from a lack of understanding (which is hardly
surprising given the complex and convoluted drafting of the Native Title Act) rather than
racism.
- Of course, indigenous peoples and other special interest groups will continue to present
difficulties for developers of resource projects. So would I, if the projects were in my
backyard.
- I firmly believe that the way to resolve such problems is by direct negotiation with the
people concerned. In the end result, coping with special interest groups and indigenous
peoples issues is not so different from the many other issues which confront a mining
developer. Just as a very difficult metallurgical problem must be worked on until solved
(often at great expense and with considerable delay) so too must problems with claims
by indigenous peoples be worked on by negotiations until solved (unfortunately, also
usually at great expense and with considerable delay). But the bottom line is that the
end result will be just another bottom line problem for the developer. Just as if the
tonneage or grade is inadequate to justify the development, if the project won't bear the
cost of compensating indigenous people and of an internationally acceptable
environmental regime, the developer had better find another project!
Notes
[1] I appreciate the assistance of Conrad Marais, law student at the University of Western Australia, who undertook some of the research required for this paper.
[2] Michael Hunt ,"Mineral Development and Indigenous People - the Implications of the Mabo case, (1993) JERL 155.
[3] These issues are examined in detail in Michael Hunt, op cit n2.
[4] The expression "native title" was used by the High Court of Australia in Mabo (No. 2) to describe the interests and rights to land of indigenous Australians. It is the term used for the concept which elsewhere is generally called "indigenous land ownership".
[5] The Native Title Act 1993 (CTH) and its implications are examined in detail in Rick Ladbury and JennyChin, "Legislative Responses to the Mabo decisions: Implications for the Australian Resources Industry", (1994) JERL 207.
[6] The Wik People v The State of Queensland and Ors: The Thayorre People v The state of Queensland and Ors; Unreported High Court of Australia Number B8 1996. For further information on the response to the Wik judgements see Briggs,J. Denholder,A. "The implications of Wik: a snapshot guide." Proctor 17 (1) January/February 1997 pp 24 - 26. Murphy,D. "Land rights:native title minefield." The Bulletin 21 January 1997. pp 22 - 25.
[7] Mabo v State of Queensland (1988) 166 CLR 186. The litigation is discussed in Michael Hunt, op cit n2 at
p156.
[8] These other decisions are outlined in Michael Hunt op cit n2 at pp157-160.
[9] Mabo v Queensland (1992) 175 CLR 1.
[10] Rick Ladbury and Jenny Chin, op cit n5.
[11] Each State and the Northern Territory has now passed legislation complementary to the Native Title Act which validates titles issued by the relevant State or Territory prior to 1 January 1994; eg. (WA) Titles Validation Act 1995.
[12] The Commonwealth's Native Title Act and the corresponding State legislation do not apply to all pre-1994 titles. They only apply to validate titles which would otherwise be invalid because they affect native title.
The importance of this statement is that the common law position as to the effect of grant of titles is not
overruled by the NTA. Thus, for example, if the law is ultimately declared by a court to be that the grant of a pre-1994 title such as a lease extinguished native title, the NTA does nothing to affect this.
[13] The Land (Titles and Traditional Usage) Act 1993 (WA).
[14] Western Australia v The Commonwealth (commonly referred to as the Native Title Act Case) (1995) 183 CLR 373.
[15] North Ganalanja Aboriginal Corporation v Queensland (1996) 135 ALR 225.
[16] The Government of Western Australia has given certain assurances to the mining industry, in relation to mining titles granted in the period between 1 January 1994 and 16 March 1995 that:
"(i) Each title issued during the period in question is regarded as valid and subsisting unless and until proven otherwise;
(ii) In the event any title is determined by the courts to be invalid by reason of a deficiency for native title
reasons, a replacement title will be granted in accordance with the procedures of the Native Title Act 1993
and under the Mining Act 1978;
(iii) The Government has undertaken to protect and preserve the right, title and interest of any title holder to the exclusion of all others to the area covered by any title subsequently determined to be invalid."
[17] Attorney-General's Department, "Legal Implications of the High Court Decision in The Wik Peoples v
Queensland", 23 January 1997, p12.
[18] Ward v Western Australia, Federal Court, WAG 6006 of 1995, judgment 17 May 1996.
[19] Most of the recent decisions of the National Native Title Tribunal have upheld the objections and ruled that
the expedited procedure does not apply to the grant of an exploration licence, whereas most of the earlier
decisions ruled that it did apply.
[20] The Federal Court has ruled that the conduct of bona fide negotiations by the State is an essential
pre-requisite to further proceeding with the process to authorise the grant: Walley v Western Australia,
Federal Court, WAG 6004 of 1996, judgment 20 June 1996.
[21] High Court of Australia (not yet reported), 23 December 1996.
[22] Premier Borbidge: The High Court is "an embarrassment". Its Wik ruling has placed at "grave risk"
confidence in the law and caused "pain, hurt and sense of bewilderment among Queenslanders". This
ruling has "reinvented common law and rejected centuries of jurisprudence". The Australian newspaper
February 19, 1997, pages 1 and 2.
[23] As confirmed by the Attorney-General. See n16.
[24] Premier Borbidge (Qld) has proposed an overhaul of the High Court, including "establishing a higher court
to oversee its functions" and "giving the public the power to sack judges": West Australian newspaper, February 19, 1997. Even a former Chief Justice of High Court (Sir Harry Gibbs) has backed an increased role for the States in selecting justices: The Australian newspaper, February 19, 1997.
[25] Bulletin magazine, January 21, 1997.
[26] Mr Leigh Clifford, The Australian newspaper February 19, 1997.
[27] Alan Kohler, The Age newspaper, February 17, 1997. Since this article has been written a settlement has been negoiated.
[28] Ibid.
[29] John Gordon "The Law Sickens From A Poisoned Environment" Law Soc Jo (Vic) October 1995, p58.
[30] Ok Tedi Mining Ltd, "Annual Review 1995".
[31] Ibid.
[32] Ibid.
[33] British South Africa Co v Companhia de Mozambique [1893] AC 602.
[34] The Broken Hill Proprietary Company Ltd v Dagi and Others, unreported, Byrne J, 22 September 1995
[35]
John Gordon "The Law Sickens From A Poisoned Environment", Law Soc Jo (Vic) October 1995, p58.
[36] Dagi and Others v The Broken Hill Proprietary Company Ltd, Sup Ct of Victoria, unreported, 27 September
1995.
[37] The Broken Hill Proprietary Company Ltd v Dagi and Others [1996] 2 VR 117.
[38] This potential for conflict has been examined in detail by Prof. T. Wälde in "Environmental Policies Towards
Mining in Developing Countries", 1992 JERL 327.
[39] "Innovations in Petroleum and Mining Licensing", Energy and Resources Law '92, I.B.A. p393 at 401.
[40] Barker G, "Papua New Guinea: Geoffrey Barker Surveys the Principles at Stake at Ok Tedi", October 1995 Australian Financial Review newspaper.
[41] Prof T. Wälde, op cit n37 at 354.
[42] Prof T. Wälde, op cit n38 at 405.
[43] Ibid.
[44] (1982) 153 CLR 169.
[45] Ibid at p220.